A new way the Stormy Daniels payment might have broken a law

The first thing that made the Stormy Daniels saga more than a salacious tale about a president and a porn star was the possibility that a $130,000, pre-election payment for Daniels's silence about an alleged affair constituted an illegal campaign contribution by President Trump's personal attorney, Michael Cohen.

On the form, filed Tuesday and made public Wednesday, Trump reported that he “fully reimbursed Mr. Cohen in 2017.” The report prompted David J. Apol, the acting director of the Office of Government Ethics, to write in a letter to Deputy Attorney General Rod J. Rosenstein that “the payment made by Mr. Cohen is required to be reported as a liability.”

In other words, Trump was $130,000 in debt to Cohen before the reimbursement. Under the Ethics in Government Act, any debt over $10,000 should have been included on last year's disclosure form, but Trump omitted the money owed to Cohen when filing in 2017.

“I am providing both reports, [2017 and 2018], to you because you may find the disclosure relevant to any inquiry you may be pursuing regarding the president's prior report that was signed on June 14, 2017,” Apol wrote to Rosenstein.

Walter Schaub, a former director of the Office of Government Ethics, tweeted that Apol's letter “is tantamount to a criminal referral. OGE has effectively reported the president to DOJ for potentially committing a crime.”

Federal law states that “any individual who knowingly and willfully falsifies” a financial disclosure can face a civil penalty of as much as $50,000 or face a criminal charge that carries a maximum sentence of one year in prison.

Keep in mind that it is unclear whether a sitting president can be charged with a crime — any crime, never mind one involving incomplete paperwork. There is no chance that the Republican-controlled Congress would impeach Trump for possibly trying to hide his Daniels-related debt to Cohen.

I say “possibly” because the omission, on its own, does not prove Trump “knowingly and willfully” falsified last year's financial report. But Schaub noted that Trump tried to avoid certifying the accuracy of the 2017 disclosure.

“Did Trump's request not to have to certify that his financial disclosure report was true constitute evidence of his consciousness of guilt with respect to the debt to Cohen for the Stormy Daniels payment?” Schaub wondered.

Did Trump's request not to have to certify that his financial disclosure report was true constitute evidence of his consciousness of guilt with respect to the debt to Cohen for the Stormy Daniels payment?

Trump attorney Rudolph W. Giuliani already has an alternative explanation for the omission: Trump did not consider the money he owed Cohen to be a debt.

“It's not a loan,” Giuliani told the New York Daily News. “It was, in fact, an expense, like paying a doctor. If you owe a doctor $2,000 and you pay him back, that's not a liability.”

There is a hole in Giuliani's argument. An outstanding legal bill might be akin to an outstanding medical bill, but Trump did not owe Cohen $130,000 for legal services; he owed Cohen $130,000 because Cohen fronted that sum in a deal with Daniels, who claims to have had an affair with Trump more than a decade ago.

It is hard to see the money Trump owed Cohen as anything other than a debt that was not disclosed when it should have been.